Item [2] December 21, 2005, 12:05 p.m. The
Lemon Cliffs of Dover I.D. and the
establishment clause in the classroom. By Lee J. Strang
http://www.nationalreview.com/comment/strang200512211205.asp
Â­ Lee J. Strang is assistant professor of law at
Ave Maria School of Law in Ann Arbor, Michigan.
Professor Strang teaches property, constitutional
interpretation, appellate practice, and federal
courts. He has published extensively on constitutional law and interpretation.

"....... assuming, however, that intelligent
design is not scientific but is instead
religious, the Constitution Â­ properly
interpreted Â­ does not exclude it from
public-school classrooms. Unfortunately, the
recent Dover case shows just how far the Supreme
Court’s establishment-clause case law has strayed
and also serves as a cautionary note to others
who would include intelligent design in the public-school science classroom.

Since 1947 and Everson v. Board of Education, the
Supreme Court has Â­ with a few recent exceptions
Â­ sought to purge religion from the public
square. In 1968 the Supreme Court ruled that
Arkansas’s statute that prevented public schools
from teaching evolution was unconstitutional, and
in 1987 the Supreme Court struck down Louisiana’s
“balanced treatment” statute that required equal
time for “creation science.” In both cases the
Court found that the religious purpose of the
statutes’ proponents was key to their
unconstitutionality. Given this precedent, the
ruling in Dover is not surprising.

In Everson and subsequent cases the Supreme Court
made the historical claim that the Establishment
Clause erected a “wall of separation” between
church and state. That claim has been subjected
to withering criticism, and yet the principle of
separation remains today in, for instance, the
infamous Lemon test’s prohibition of a religious
governmental purpose. It was this factor, more
than anything else, that the judge in Dover
relied upon to find the Dover board’s actions
unconstitutional. As a result, the Supreme
Court’s case law, because it is unhinged from the
historic meaning of the establishment clause,
remains deeply hostile to religion in the public
square. So long as the Court’s current Â­
incorrect Â­ interpretation of the
establishment-clause remains the law, it will
beget more bad law such as the Dover decision.

It is not only the Supreme Court’s hostile
establishment-clause precedent that led to the
unfortunate result in Dover, because the facts of
the case made the result even more likely.

Judge Jones spent many pages in his opinion
relating board-member statements showing the
clear religious purpose of the Dover school board
such as, “2,000 years ago someone died on a
cross. Can’t someone take a stand for him?” Even
the board’s attorney warned the board that the
history leading up to its decision to require
reading the statement Â­ “a lot of discussion . .
. for putting religion back in the schools” Â­
would damage the board’s chances in a lawsuit.

The “bad” facts of the case forced even a judge
like Judge Jones, who was appointed by George W. Bush, to make bad law.

The vast majority of Americans are religious, and
a large percentage are serious Christians.
Teaching intelligent design in public-school
science class is one of the current skirmishes in
the larger battle over the role of religion in the public square.

Americans who want their children exposed to
alternatives to materialist Darwinism must work
to prevent more bad law and “bad” facts that
would push religion further out of the public square.

Americans can elect local, state, and federal
representatives who will press for equal access
for intelligent design Â­ or other criticisms of
materialist Darwinism Â­ in science class or elsewhere in the curriculum.

We can also work to ensure the appointment of
federal judges who abide by the original meaning
of the Constitution. The original meaning of the
Constitution is the publicly understood meaning
of the Constitution’s text when it was ratified.

When judges follow the original meaning, they
respect the democratic choices of our society and the limits of their office.

Originalist judges will find, as Justice Scalia
argued last Summer in McCreary County v. ACLU,
that the establishment clause permits government
to favor religion over irreligion or nonreligion.

This would eliminate the establishment clause’s
false hostility to religion. ..."
Received on Fri Dec 30 18:11:53 2005